Introduction

In a recent case concerning the duty to consult in BC,
Chartrand v. The District Manager1, the Supreme
Court has upheld the province of British Columbia's
consultation with the Kwakiutl First Nation regarding forest
management decisions.

Discussion

In this case, the Kwakiutl First Nation sought judicial review
of the province's decisions to allow a forestry company to
remove its private lands from a tree farm licence and to approve
(and later extend) a forest stewardship plan. The Kwakiutl First
Nation objected to these decisions, citing effects on its asserted
aboriginal rights and title.

The Kwakiutl First Nation's ancestors had entered into a
treaty whereby it surrendered much of its traditional territory,
receiving money and retaining only its village sites and enclosed
fields for its own use, as well as a promise that such lands would
be surveyed. The Kwakiutl First Nation treaty is one of the
fourteen Vancouver Island "Douglas" treaties. Proper
surveying never occurred, and lands were not set aside until over
30 years after the treaty was signed. The Kwakiutl First Nation had
initiated litigation concerning alleged breaches of the treaty by
the Crown, asserting aboriginal rights and title to its entire
traditional territory beyond those conveyed in the treaty.

The province took the position in this case that consultations
with the Kwakiutl First Nation would be restricted to how its
decisions would impact the Kwakiutl First Nation's treaty
rights and lands only. The Kwakiutl First Nation's position was
that all of its traditional territory must be considered, not just
those subject to treaty. Ultimately, the province approved the
removal of the private lands by the forestry company and the forest
stewardship plan based on the narrower scope of consultation. The
Kwakiutl First Nation applied to the Court to set aside the
decision on the basis of lack of consultation.

In concluding that the consultation with the Kwakiutl First
Nation was adequate, the Court made several findings of note:

Contrary to the province's argument that the Kwakiutl First
Nation's aboriginal rights and title were not determinable in a
judicial review setting, even on a prima facie basis, the
issues raised by the Kwakiutl First Nation were appropriate for the
forum. The Court was required to only consider, but not decide,
issues of aboriginal rights and title.

Expert and oral history evidence concerning the Douglas
treaties was admissible to support the Kwakiutl First Nation's
case, even though the evidence was not before the original
provincial decision-makers. The Court found that the expert and
oral evidence was admissible only for the limited purpose of
determining whether the duty to consult had been met.

The applicable standard of review regarding the existence and
nature of the duty to consult is correctness, and the standard for
the review of the adequacy of the consultation process is
reasonableness.

The province had a duty to consult regarding the Kwakiutl First
Nation's entire asserted territory beyond the lands conveyed to
it in the Kwakiutl First Nation treaty, rather than – as the
province had argued – simply the treaty lands themselves.
This finding is contrary to an earlier BC decision which stated
that the aboriginal rights of a Douglas treaty First Nation were
extinguished except for those conveyed in the treaty. In this case,
the specific, unique language of the Kwakiutl First Nation treaty
was an exception to that earlier principle.

The potential adverse impacts of the province's decisions
in this case were noted to be significant and the
Court commented that "the removal of private lands from
TFL 6 would potentially affect access to old growth cedar, fishery
streams, create a risk of harm to cultural, archaeological and
spiritual sites, harvesting forest plants for food, medicinal and
ceremonial purposes and the ability to continue hunting and
trapping traditions."

Despite the finding that the province did not consider the
entire traditional lands of the Kwakiutl First Nation to be subject
to the duty to consult, the Court held that the province satisfied
its duty to consult in the circumstances. Regarding the potential
impacts to the Kwakiutl First Nation's asserted and treaty
rights, the Court noted that a condition of the province's
decision to allow the private lands to be removed from the tree
farm licence required the Kwakiutl First Nation be provided with
the ability to continue to access the subject lands.

The Court commented that both the Kwakiutl First Nation and the
province engaged in the consultation process "equally
inflexibly, without balance or compromise," but it nonetheless
found that the consultation provided in respect of the treaty
lands, regardless of the Crown's insistence that it did not
need to consult in respect of the Kwakiutl First Nation's
interests beyond the treaty lands, did not result in the process
being inadequate. The Court cited the Kwakiutl First Nation's
refusal to meaningfully engage in the consultation process
available and provide specific information about any impacts that
the decisions would have on its asserted or treaty rights as being
a factor in the decision to uphold the adequacy of the level of
consultation.

Though a discussion of remedies was unnecessary given that the
duty to consult had been met, the Court commented on the Kwakiutl
First Nation's detailed submissions regarding a proposed
framework for requiring the involvement of the federal Crown in
consultation processes concerning treaties. The Court declined to
make an order setting out such a framework, citing established
jurisprudence holding that the duty to consult regarding provincial
decisions falls upon the provincial Crown. Citing a recent decision
of the Ontario Court of Appeal, the Court also dismissed the
proposition that the federal Crown has a residual role in the
operation of provincial authority on lands subject to treaty
claims. The Court commented that the setting out and supervision of
a consultation framework is not the role of the judiciary. Finally,
the Court noted that there is no constitutional basis for the
federal Crown's involvement in the provincial forestry
regime.

The Court dismissed the majority of the relief sought
by the Kwakiutl First Nation, with the exception of a declaration
that the province has an ongoing duty to consult the Kwakiutl First
Nation and seek accommodations regarding its claim of aboriginal
rights, title and interests in respect of its traditional
territory, including the lands beyond the treaty lands.

Commentary

A number of points in this decision are noteworthy, including
the following:

The Court once again confirmed the importance of reciprocal
responsibilities in carrying out the duty to consult on behalf of
both the Crown and First Nations, stating that "reasonable
consultation is a two-way street". First Nations can satisfy
this responsibility by expressing "interests and concerns in a
meaningful and substantive way."

The Court's declaration that the province has an ongoing
duty to consult the Kwakiutl First Nation and seek accommodations
regarding its claim of aboriginal rights, title and interests
beyond just the treaty lands and interests means that, practically
speaking, the existence of a treaty per se cannot be used
to justify a narrow scope of consultation. Whether this
determination will have application to other cases involving First
Nations covered by treaties remains to be seen.

The Court's refusal to make an order setting out
consultation process involving the federal Crown signals an
unwillingness to dictate and supervise consultation, as opposed to
determining its adequacy, and is consistent with the guidance of
the Court of Appeal in Adams Lake Indian Band v. Lieutenant
Governor in council et al.2

Footnotes

1. 2013 BCSC 1068

2. 2012 BCCA 333

The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.

Two recent Supreme Court of Canada decisions provide guidance on how provincial governments must proceed when engaging in resource development on lands subject to Aboriginal title or to treaty agreements.

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